UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

Civil Action No. 16-1853 (TJK) 

TORRAIN KELLY, 

Plaintiff, 

v. 

RICHARD WRIGHT PUBLIC CHARTER 

SCHOOL et al., 

Defendants. 

MEMORANDUM OPINION AND ORDER 

 Defendant Richard Wright Public Charter School is a charter school operating in the 

District of Columbia, Defendant Marco Clark is the school’s CEO, and Plaintiff Torrain Kelly is 

a former teacher at the school. Both Defendants answered Plaintiff’s complaint and moved for 

summary judgment without asserting as a defense the statutory immunity that is conferred on 

charter schools and their employees under District of Columbia law. Six months after filing their 

motion for summary judgment, Defendants moved to dismiss on the basis of this statutory 

immunity. See ECF No. 40 (“Mot.”). For the reasons explained below, Defendants’ Motion to 

Dismiss will be denied. The statutory immunity they cite is an affirmative defense that they 

failed to plead in their answers, and therefore is forfeited. This immunity does not, as 

Defendants argue, divest this Court of subject-matter jurisdiction. 

Background 

On September 16, 2016, Plaintiff filed suit against Defendants. ECF No. 1 (“Compl.”). 

He asserts claims under the federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; the 

District of Columbia Family and Medical Leave Act (“DCFMLA”), D.C. Code §§ 32-503, 32-
 

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507; and the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401.01 et 

seq. Compl. ¶¶ 56-62. 

On October 13, 2016, both Defendants filed answers to Plaintiff’s complaint. ECF Nos. 

5-6. Neither answer asserted an affirmative defense based on any kind of immunity. ECF No. 5 

at 8-10; ECF No. 6 at 8-10. After the close of discovery, on June 9, 2017, Defendants moved for 

summary judgment. ECF No. 20. 

Then, on December 12, 2017, more than six months later, Defendants moved to dismiss 

on the ground that they are statutorily immune from civil liability. See Mot.; ECF No. 45 

(“Opp.”); ECF No. 54 (“Reply”). In their Motion, Defendants argue that the District of 

Columbia School Reform Act of 1995 (“School Reform Act”), Pub. L. No. 104-134, § 101(b) tit. 

II, 110 Stat. 1321, 1321-107 to 1321-156 (1996) (codified as amended at D.C. Code § 38-

1800.02 et seq.) immunizes them from Plaintiff’s DCFMLA and DCHRA claims. Reply at 2-3. 

One of its provisions, D.C. Code. § 38-1802.04(c)(17), provides as follows: 

(17) Immunity from civil liability. — 

(A) In general. — A public charter school, and its incorporators, Board of 

Trustees, officers, employees, and volunteers, shall be immune from civil 

liability, both personally and professionally, for any act or omission within the 

scope of their official duties unless the act or omission: 

(i) Constitutes gross negligence; 

(ii) Constitutes an intentional tort; or 

(iii) Is criminal in nature. 

(B) Common law immunity preserved. — Subparagraph (A) of this paragraph 

shall not be construed to abrogate any immunity under common law of a person 

described in such subparagraph. 

 Plaintiff does not appear to dispute that this provision applies to his claims arising under 

District of Columbia law. Instead, he contends that Defendants forfeited this defense because 

they did not assert it in a responsive pleading. Opp. at 5-6 (citing Fed. R. Civ. P. 12(h)(1)). 

Defendants counter that the immunity afforded them under the statute goes to the Court’s 
 

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subject-matter jurisdiction, which means it cannot be forfeited. Reply at 3-4 (citing Fed. R. Civ. 

P. 12(h)(3)). 

Legal Standard 

Federal Rule of Civil Procedure 8(c) provides that “[i]n responding to a pleading, a party 

must affirmatively state any avoidance or affirmative defense . . . .” Fed. R. Civ. P. 8(c). “The 

D.C. Circuit has made clear that ‘Rule 8(c) means what it says: a party must first raise its 

affirmative defenses in a responsive pleading before it can raise them in a dispositive motion.’” 

Arias v. DynCorp, No. 01-cv-1908, 2016 WL 6496214, at *4 (D.D.C. Nov. 2, 2016) (emphasis 

omitted) (citing Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 345 (D.C. Cir. 

1997)). On the other hand, if a defense implicates the Court’s subject-matter jurisdiction, 

Federal Rule of Civil Procedure 12(h)(3) provides that a court “must dismiss” an action if it 

“determines at any time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3) 

(emphasis added). This reflects the fundamental principle that “[s]ubject-matter jurisdiction 

cannot be forfeited or waived . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). 

In a diversity case, “[d]etermining whether a contention is an affirmative defense for rule 

8(c) purposes is a matter of state law.” Troxler v. Owens-Illinois, Inc., 717 F.2d 530, 532 (11th 

Cir. 1983); see also Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895, 901 (6th Cir. 2002) 

(“Cases from other circuits make clear that the district court was correct in this case to look to 

Michigan state law to determine whether or not the [statute of repose] is an affirmative defense 

for the purposes of Rule 8(c).”). But “federal law dictates ‘the manner and time in which 
 

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defenses are raised and when [forfeiture] occurs.’” Lee v. Universal Underwriters Ins. Co., 642 

F. App’x 969, 973-74 (11th Cir. 2016) (quoting Troxler, 717 F.2d at 532).1

Analysis 

As a federal court applying District of Columbia law, this Court’s duty is to predict, as 

best it can, how the District of Columbia Court of Appeals would decide the issue upon which 

Defendants’ Motion turns: whether the statutory immunity afforded by D.C. Code § 38-

1802.04(c)(17) is an affirmative defense. See Siegel v. Mazda Motor Corp., 835 F.2d 1475, 

1476-77 (D.C. Cir. 1987); Forras v. Rauf, 39 F. Supp. 3d 45, 53 (D.D.C. 2014). If it is an 

affirmative defense, then Rule 8(c) requires it to be pleaded—otherwise, it is forfeited.2

 The 

Court has not located any cases applying District of Columbia law that address this specific 

question, or the broader issue of whether, as a general matter, statutory immunity is an 

affirmative defense. 

The vast majority of federal courts to consider this question, however, have held that 

state-law statutory immunity is an affirmative defense that defendants must plead. See, e.g., 

Dakshinamoorthy v. Nat’l Ass’n of Boards of Pharmacy, 475 F. App’x 548, 550 (6th Cir. 2012) 

 

1

 “The terms waiver and forfeiture—though often used interchangeably by jurists and litigants—

are not synonymous. [F]orfeiture is the failure to make the timely assertion of a right[;] waiver is 

the intentional relinquishment or abandonment of a known right.” Hamer v. Neighborhood 

Hous. Servs. of Chi., 138 S. Ct. 13, 17 n.1 (2017) (alterations in original) (quoting United States 

v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). At issue here is whether 

Defendants forfeited a statutory-immunity defense because of their “failure to make the timely 

assertion of a right.” Id. 

2

 Plaintiff appears to suggest that Defendants forfeited their statutory immunity defense because 

they did not contest personal jurisdiction. Opp. at 5-6 (citing Fed. R. Civ. P. 12(h)(1)). Personal 

jurisdiction can, of course, be forfeited. Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 

338, 344 (D.C. Cir. 2018). But statutory immunity—which goes to whether Defendants can be 

held liable—is a different defense than personal jurisdiction, which goes to whether the Court 

can exercise jurisdiction over Defendants. Thus, it is Rule 8(c), not Rule 12(h)(1), that controls 

here. 
 

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(statutory immunity for reports by health-professional organizations); Troxler, 717 F.2d at 533 

(statutory immunity for employers under workers’ compensation statute); Cox v. Smith (In re 

Cent. Ill, Energy Coop.), 561 B.R. 699, 713 (Bankr. C.D. Ill. 2016) (statutory immunity for 

directors of agricultural cooperative); Niebur v. Town of Cicero, 212 F. Supp. 2d 790, 819-20 

(N.D. Ill. 2002) (statutory immunity for public officials performing discretionary functions); 

Roush v. Stone, No. 2:08-cv-141, 2010 WL 3037003, at *2 (S.D. Ohio Aug. 2, 2010) (statutory 

immunity for state employees); Shirsat v. Mut. Pharm. Co., No. 93-cv-3202, 1996 WL 606297, 

at *3 (E.D. Pa. Oct. 22, 1996) (immunity under workers’ compensation statute); see also In re 

Stock Exchs. Options Trading Antitrust Litig., 317 F.3d 134, 151 (2d Cir. 2003) (“Affirmative 

defenses and avoidances other than those specifically referenced [in Rule 8(c)] have been found 

to include . . . statutory immunity . . . .” (first alteration in original) (quoting 2 Moore’s Federal 

Practice § 8.07[5] (3d ed. 1999)). And in many of these cases, the court held that defendants 

had, in fact, forfeited this affirmative defense. Troxler, 717 F.2d at 533; Niebur, 212 F. Supp. 2d 

at 819-20; Roush, 2010 WL 3037003, at *3-4. 

 Consistent with these authorities, the Court concludes that the District of Columbia Court 

of Appeals would likely hold that the statutory immunity at issue here is an affirmative defense. 

As such, defendants in federal court “must first raise . . . [it] in a responsive pleading before 

[they] can raise [it] in a dispositive motion.” Harris, 126 F.3d at 345. Defendants did not raise 

statutory immunity as an affirmative defense. See ECF No. 5 at 8-10; ECF No. 6 at 8-10. And 

they have not sought leave to amend their answers. Thus, they have forfeited this affirmative 

defense. See, e.g., Gilbert v. Napolitano, 670 F.3d 258, 260-61 (D.C. Cir. 2012) (“[Defendant] 

points out that it promptly asserted the defense in its motion to dismiss, but this misses the point: 

as we have explained, ‘a party must first raise its affirmative defenses in a responsive pleading 
 

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before it can raise them in a dispositive motion.’ (quoting Harris, 126 F.3d at 345)); Butler v. 

White, 67 F. Supp. 3d 59, 67 (D.D.C. 2014) (“If defendant had argued the affirmative defenses in 

its dispositive motion but never filed a motion to amend, Harris would certainly call for the 

forfeiture of defendant’s affirmative defenses.”); Nurriddin v. Goldin, 382 F. Supp. 2d 79, 91 

(D.D.C. 2005), aff’d, 222 F. App’x 5 (D.C. Cir. 2007). 

 Defendants suggest in their reply brief that the School Reform Act confers “absolute 

statutory immunity” which “cannot be [forfeited].” Reply at 4. But the only case they cite to 

support this proposition, Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 

456 U.S. 694 (1982), merely stands for the unremarkable proposition that subject-matter 

jurisdiction cannot be forfeited—a point no one contests. See id. at 702. The case says nothing 

about whether “absolute statutory immunity” goes to a court’s subject-matter jurisdiction. 

Moreover, even if it did, the statute at issue here does not confer “absolute” immunity. It applies 

only to “any act or omission within the scope of [public charter schools’ or their employees’] 

official duties.” D.C. Code. § 38-1802.04(c)(17)(A). It also leaves public charter schools and 

their employees open to claims based on gross negligence, an intentional tort, or criminal 

activity. Id. For these reasons, the immunity provided by the School Reform Act is far from 

“absolute”—rather, it is a carefully limited immunity. Thus, like other forms of statutory 

immunity, it is an affirmative defense that can be forfeited. Dakshinamoorthy, 475 F. App’x at 

550; Troxler, 717 F.2d at 533. 

 In sum, the Court concludes that the limited statutory immunity provided by the School 

Reform Act is an affirmative defense that Defendants failed to plead in their answers, ECF Nos. 

5-6, and thereby forfeited. Harris, 126 F.3d at 354. 
 

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Conclusion and Order 

For all of the above reasons, Defendants’ Motion to Dismiss, ECF No. 40, is DENIED. 

SO ORDERED. 

/s/ Timothy J. Kelly 

TIMOTHY J. KELLY 

United States District Judge 

Date: July 9, 2018